MBTA Communities Act Emergency Declaration Explained
There is no true "emergency" that justifies bypassing our laws and violating our rights. The Executive Office of Housing and Livable Communities (EOHLC) effectively acknowledges this in their emergency declaration.
The Emergency Regulations are just as unenforceable as the nearly identical Guidelines that were recently overturned. The requirements set forth by the Administrative Procedure Act (APA) are not mere formalities. These safeguards—on which the Supreme Judicial Court (SJC) relied in its Milton decision—exist to uphold our democratic system, protect the public from harmful agency overreach, and prevent unelected lobbyist groups from stripping away our right to voice opposition and raise concerns.
This emergency declaration is a reckless abuse of power with far-reaching consequences. It effectively grants Executive Office of Housing and Livable Communities (EOHLC) unchecked authority to impose zoning changes on any community at any time under the pretense of a fabricated emergency. This is an unacceptable violation of local governance, and we refuse to allow it—now or in the future.
This is the United States of America. Massachusetts state and local leaders, along with their politically motivated, unelected agency heads, would do well to revisit the Constitution and the Declaration of Independence. No one in government—elected or otherwise—is above the law. And no one will evade the consequences of disregarding it.
“Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
A Freedom of Information Act (FOIA) request uncovered EOHLC’s declaration of an “emergency regulation,” which states:
“Compliance with M.G.L. c. 30A
EMERGENCY ADOPTION - If this regulation is adopted as an emergency, state the nature of the emergency.
G.L. c. 40A, § 3A, requires EOHLC, in consultation with EOED, MassDOT and the MBTA, to promulgate guidelines to determine if an MBTA community is in compliance with G.L. c. 40A, § 3A. The immediate adoption of 760 CMR 72.00 is necessary pursuant to the Decision issued by the SJC in Attorney General v. Town of Milton, et al. SJC-13580, slip op. at 22 (Jan. 8, 2025), holding that the guidelines issued by EOHLC on August 17, 2023 “are legally ineffective and must be repromulgated in accordance with [Chapter 30A]...” Absent this emergency adoption, there would be no regulations in effect, which EOHLC finds would be detrimental to the general public welfare, including but not limited to the interests of municipalities and others that have relied on the guidelines. EOHLC intends to make 760 CMR 72.00 permanent and will begin the non-emergency promulgation process shortly after filing the emergency regulation.”
What’s Happening?
There’s a Massachusetts law (G.L. c. 40A, § 3A) that requires cities and towns with MBTA (public transit) access to follow certain zoning rules. These rules are meant to ensure communities allow enough housing near transit stations.
The state agency in charge of overseeing this law—the Executive Office of Housing and Livable Communities (EOHLC)—was supposed to create and enforce guidelines to make sure cities and towns were following the law. They did issue these guidelines on August 17, 2023.
The Court Ruling & The Problem
However, on January 8, 2025, Massachusetts’ highest court (the Supreme Judicial Court, or SJC) ruled in the case Attorney General v. Town of Milton that these 2023 guidelines were not legally valid. The court said the agency did not follow the proper legal steps when creating the rules and that they must be officially redone through the correct process (as required by another law, Chapter 30A).
Because of this ruling, the previous guidelines can’t be enforced. This creates a big problem: Without these zoning rules in place, cities and towns wouldn’t have any official regulations guiding their zoning decisions under this law. That could lead to confusion, legal uncertainty, and disruption for municipalities and developers who had been following the 2023 guidelines.
The Emergency Solution
To fix this issue immediately, EOHLC is emergency-adopting new regulations, called 760 CMR 72.00. The purpose of this emergency rule is to temporarily put zoning regulations back in place so that there’s no gap in enforcement while the agency goes through the normal legal process to make the regulations permanent.
Without this emergency measure, there would be no official zoning rules in effect, which the agency believes would be harmful to the public and to towns that have been relying on the previous guidelines.
How absurd is that? A court challenge has already been filed against EOHLC’s so-called “emergency regulations.” To some, EOHLC’s emergency regulation filing signals a doubling down on their missteps. While they may allow public hearings and comments, they show no willingness to make meaningful changes to the MBTA Communities Act regulations—especially after strong-arming certain communities into compliance with threats of withholding taxpayer-funded grants and other punitive measures.
What Happens Next?
EOHLC isn’t stopping with the emergency rule. They plan to start the formal, non-emergency rulemaking process soon so they can adopt a permanent version of these regulations through the proper legal steps.
In Simple Terms:
There’s a law saying MBTA communities must follow certain zoning rules, with the exception of Boston.
The state agency (EOHLC) made rules in 2023, but the state’s highest court recently said those rules weren’t made correctly.
Because of the court’s decision, the old rules are now invalid, leaving no zoning regulations in place.
To prevent confusion and problems, EOHLC is quickly putting in emergency rules to keep things running while they properly create permanent rules.
The cabinet-level secretariat was created in 2023 by the Healey-Driscoll Administration and is led by EOHLC Secretary Ed Augustus, Jr. and he has some serious explaining to do as court filings against his agency continue to mount up.
This should be a straightforward case for the SJC. Communities that continue to comply with unenforceable emergency regulations do so at their own peril, and state and local officials may face personal liability for enabling lawlessness by blindly following unlawful state orders. EOHLC and Attorney General Andrea Campbell are attempting to ensnare community leaders in a legal trap by pressuring them to submit a new Action Plan that imposes obligations and acknowledges penalties for noncompliance. Registered voters must hold their local officials accountable for their actions and decisions.